News

Distribution agreements and online sales – particularly restrictions on online sales – have been a hot topic among suppliers, their advisors and competition authorities in many jurisdictions for more than a decade.

In May 2017, the European Commission published its final report on the e-commerce sector inquiry and we have already had some interesting national and European cases since then. The Commission’s report as well as the case law highlight topics such as increased price-transparency, the exclusion of ‘pure’ online retailers, the use of geographical restrictions (so-called geo-blocking), restrictions on the use of marketplaces, and price comparison tools.

We give legal insights to these topics and some of the most important national differences in our paper on selective distribution and online sales.

Recently the European Commission published the public version of its decision to fine recycling companies Campine, Recyclex and Eco-Bat €68 million for their participation in a car battery recycling cartel. As far as we know, this is the first time the Commission sets a fine relating to purchasing activities in the circular economy. This case is also remarkable because purchasing combinations are often held to generate efficiencies for the benefit of consumers. The case also shows that a race for leniency can be detrimental to one’s (in this case: Campine’s) legal position.

On 6 December 2017, the European Court of Justice delivered the long-awaited judgment in the Coty case. The ECJ ruled that the cosmetics manufacturer Coty’s prohibition against its distributors’ internet sale via third parties like Ebay and Amazon was not unlawful. The matter preoccupies many businesses and national competition authorities and this judgment brings more clarity about the legal position within the area – especially for high-end brands.

By decision 51/2017, the Cyprus Commission for the Protection of Competition (‘CPC’) imposed a total fine of €20.775.630 on the following Cypriot based fuel companies after an investigation carried out on its own initiative,: ExxonMobil Cyprus Ltd, Hellenic Petroleum Cyprus Ltd, Petrolina Holdings (Public) Ltd και Lukoil Cyprus Ltd.
Read more →

The wholesale company Metro has violated the Danish Competition Act by retaining information about a potential buyer of the company in a contemplated merger between Metro and the wholesale supplier Euro cater. This was established by a District Court in Denmark on 21 April 2017. Metro was imposed a fine of DKK 50,000.

ACM launched its investigation into the bunker sector after the Public Prosecution service provided ACM with police information about the bunker sector. The ACM suspects that bunker companies have made illegal price arrangements. The ACM will further investigate the behavior in the bunker sector during the coming period. It is not clear which specific bunker companies are subject to the cartel investigation.

ACM’s investigation is part of its wider approach to target the ports and transport sector. The ports and transport sector has been a (high) priority of ACM’s 2016-2017 agenda. A month ago, ACM sent a letter to 3,500 companies in the ports and transport sector, in which it informed the undertakings about the competition rules. ACM also developed its own Cartel Test for these companies by which they can self-assess whether their behavior may be in violation of the cartel prohibition.

ACM has stressed that the investigation does not necessarily imply that the bunker companies have violated the cartel prohibition. It may take a while before we know whether sanctions will be imposed. If ACM concludes that the competition rules have been violated, it will send a (draft) report (statement of objections) to the companies concerned. The companies will be given the opportunity to respond to the allegations. Afterwards, ACM will decide whether there is sufficient ground to impose fines (or whether the investigation will be ceased). If the investigation results in a fine, appeal proceedings are open for the respective companies.

Today it was published that Opel Danmark A/S has accepted a fine of DKK 8.25 million on 13 October 2016 for an infringement of section 6 of the Danish Competition Act.

The case concerns an anti-competitive vertical agreement between Opel and their independent dealers. In the period from 2010 to 2014, Opel has set minimum retail prices for the dealers’ sale of used Opel leasing, rental and demo cars. Consequently, Opel has prevented the distributors from competing on price for sale of these cars, which is a breach of section 6 of the Danish Competition Act.

In the determination of the fine it has been a mitigation circumstance that Opel has given the authorities information about the infringement and that Opel has documented that an extensive compliance program has been implemented.

Opel has decided to plead guilty and accept a fine notice from the Danish Public Prosecutor for Serious Financial Crime. Consequently, the case has been settled without a trail.

The German Competition Authority has passed decisions in new cases in their enquiry into the food retail sector. The retailers has been fined for vertical price agreements with suppliers of beer, confectionery products and coffee. The product brands include Beck’s, Franziskaner, Hasseröder, Haribo and Melitta.

The decisions are part of a larger investigation, where many well-known retailers have been sanctioned for vertical price maintenance on shop prices of a wide variety of products.

The German Competition Authorities started the investigation with dawn raids back in January 2010.

The Constitutional Court in Malta has confirmed that Maltese competition procedure (which is similar to the procedure at EU level) breaches the constitutional provisions on fair hearing. A summary of this case can be found here.

In a state aid dispute, Danish courts have rule on the question, whether premium free loan guarantees from a municipality to district heating companies can constitute illegal state aid in the sense of Article 107 (1) the Treaty on the Functioning of the European Union. Horten assisted the Municipality of Sønderborg in the case.